Discussing Jeremy Waldron’s “Homelessness and the Issue of Freedom”

This podcast was recorded in May of 2021. The transcript has been edited for length and clarity. Disclaimer: The content of the podcast does not necessarily reflect the individual beliefs of the writer. The purpose of this episode is to make accessible to the public an academic article written by a preeminent legal scholar. 

Transcript

1. Introduction

Rosanna: Hi and welcome to the Harvard Undergraduate Law Review Podcast. With me today, Ali, a staff writer in Adams House, concentrating in Social Studies and Philosophy.

Ali: Thank you for the introduction! And with me, Rosanna, a first-year staff-writer and future Dunster House resident. So, tell me, Rosanna, what are we going to talk about today? 

Rosanna: Well, we’re going to do something a bit different this time: we are going to talk about legal issues from a primarily philosophical perspective.

Ali: Great! Can you tell me more? 

2. Negative freedom

Rosanna: We are going to talk about a legal philosophy article titled “Homelessness and the Issue of Freedom” by Jeremy Waldron, who teaches at NYU. 

Ali: Okay, can you walk me through Waldron’s idea of freedom?

Rosanna: Do you agree that when we say that the law should be applied to everyone equally, we say that everyone should be equally free?

Ali: Yes, that makes sense. If I get a parking ticket or if I get thrown in jail, that has a direct impact on my freedom. When you are saying that everyone is equally free, that means that there is nothing special about someone’s identity that would make them more likely to get a ticket, or to serve a prison sentence. So in the case of Waldron’s article, what this means is that people who suffer from homelessness should not be more likely to get a ticket, or to be thrown in jail.

Rosanna: Yep. More specifically, the freedom that Waldron wants to talk about is negative freedom, that is, the freedom from being prevented from doing something. The distinction originates with Isaiah Berlin’s Two Concept of Liberties. It’s hard to be against an equal distribution of this kind of freedom, because it is intuitive to think that everyone should be able to do what they want, as long as they are not infringing upon the freedom of others. 

Ali: That sounds right to me. Are there some freedoms that are more important than others? 

Rosanna: What do you think? 

Ali: I mean, it seems to me that the freedoms of the Bill of Rights are the most important ones. Freedom of speech, religion, association. The right to bear arms, the equal protection of the laws, the freedom from cruel and unusual punishment. So, if we phrase them in the negative sense, the most important freedom is the freedom to not have any of the rights I just mentioned violated. Right? 

Rosanna: You are not wrong. These freedoms are certainly essential, which is why they are protected by the Constitution. But to be able to exercise one’s freedom of speech, to exercise one’s religion or right to association, one must have the basic freedom to survive. That is, one must be free to sleep, drink, and care for one's personal needs. Again, because we are concerned with the negative formulation of freedom, the freedom to survive means not having someone else interfere in one’s effort to secure food, shelter, and the basic means of survival. 

Ali: Perfect. Now that we have defined the key concept of this article, let’s move on to Waldron’s main argument. 

3. Waldron’s Argument

Ali: Waldron’s main argument is the following: “The homeless are free only to the extent that society is communist.” 

Rosanna: This is a very controversial claim, so let’s unpack it. Waldron distinguishes between two types of property: private and common. For Waldron, “private ownership of land exists when an individual person may determine who is, and who is not, allowed to be in a certain place, without answering to anyone else for that decision.” Conversely, a land held in common ownership is not connected to a specific person or body that can exclude you. 

Ali: So, basically, when you own a home, you have the power to determine who is allowed to be in your home. If a homeless person trespasses on your property, you have the right to forcibly remove that person from your home. What Waldron points out is that when you have a home, you have a place where you can be whenever you want. 

Rosanna: That’s right. Now let’s take that idea to the maximum, and imagine what the libertarian dream would look like. Every piece of land in the country would be privately owned and each owner can determine who is allowed to be on their land. There are no public streets or public parks, no freely accessible forest or field. Every single piece of the pavement is owned and controlled by someone who has absolute power of exclusion over everyone else. What do you think would happen to homeless people in that scenario?

Ali: Effectively, they would not be allowed to even exist, because to do anything, one has to do it somewhere. In other words, if every landowner said “you can’t be here,” there would be no place left for them to go. And you can’t exist without space. 

Rosanna: When Waldron says that the homeless are only free to the extent that society is communist, what he really means is that a homeless person’s existence depends on society having land which is collectively owned by all of that society’s members. Thankfully, we do have such spaces today, like parks and subways. So does that mean that homeless people are as free as someone who is not homeless? After all, there are places where they can go with no risk of being expelled, which means that their negative freedom to be in a specific place is not violated. 

Ali: Not so fast. It’s important to recognize that even though homeless individuals are not prohibited from physically accessing a number of common spaces, they are prohibited from performing certain activities in the spaces held in common. For example, they cannot sleep in the subway or urinate in the streets. This is because these actions are generally considered something one does at home. You use the subway for commuting to work, not for sleeping because that is what you do at home in your bed. That street is also not for urinating, because that’s what you do in private. 

Rosanna: Right, but for those who do not have access to a private space, the only places where they can perform those activities are common ones. But if even common spaces prohibit actions that are effectively necessary to one’s survival, then this means that homeless people are once again, prohibited from surviving.

Ali: So, when Waldron writes that the homeless are only free to the extent to which society is communist, this means that the common ownership of land must be substantive. In other words, it means that land must be both freely accessible, and free of restrictions on usage?

Rosanna: That’s exactly right. And don’t forget about the important freedom that we mentioned earlier, those of the Bill of Rights. Waldron writes that they can only be enjoyed if one has the freedom to exist and survive in the first place. So, in a sense, the constitutional freedoms of the homeless depend on how much of the land is substantively put in common. 

Ali: Alright, I think I get it. Thanks! 

Rosanna: You bet! Thanks for listening to the Harvard Undergraduate Law Review. Don’t forget to check out other podcasts and articles by our fellow staff members. 

References

Waldron, Jeremy. "Homelessness and the Issue of Freedom." UCLA Law Review 39, no. 2 (1991): 295.